Schedule I

A federal district court judge in Manhattan today granted the government’s motion to dismiss a lawsuit that sought to challenge the constitutionality of cannabis’ prohibited status under federal law.

[2/27/18 update: Plaintiffs have stated their intent to appeal the court’s ruling.]

The 98-page complaint, filed in July 2017 by a legal team that includes New York attorney Michael Hiller, NORML Legal Committee member Joseph Bondy and Empire State NORML Director David Holland, contended that the federal government “does not believe, and upon information and belief never has believed” that cannabis meets the requirements for a Schedule I designation under the Controlled Substances Act. It further argued that current administrative mechanisms in place to allow for the reconsideration of cannabis Schedule I classification are “illusory.” Lawyers for the Justice Department argued for a dismissal of the suit, arguing: “There is no fundamental right to use marijuana, for medical purposes or otherwise.”

Presiding Judge Alvin K. Hellerstein sided with the federal government, opining in a 20-page ruling: “No such fundamental right (to possess or use cannabis) exists. Every court to consider the specific, carefully framed right at issue here has held that there is no substantive due process right to use medical marijuana.” The judge further ruled that plaintiffs had not yet exhausted all of the potential administrative remedies available to them — such as filing an administrative petition to reschedule cannabis with the US Drug Enforcement Administration — and therefore, it was inappropriate for the court to intervene. “There can be no complaint of constitutional error when such a process is designed to provide a safety valve of this kind,” he opined. “Judicial economy is not served through a collateral proceeding of this kind that seeks to undercut the regulatory machinery on the Executive Branch and the process of judicial review in the Court of Appeals.”

Judge Hellerstein also rejected plaintiffs’ claim that the federal law is unconstitutional because “it was passed with racial animus.” He held that plaintiffs lacked the standing to argue such a claim because they “have failed to demonstrate that a favorable decision is likely to redress plaintiffs’ alleged injuries,” such as a dismissal of their past criminal convictions.

With regard to the question of whether the plaintiffs legitimately benefited from cannabis as a medicinal agent, the judge argued that the merits of this claim was beyond the scope of the court. “Plaintiffs’ amended complaint, which I must accept as true for the purpose of this motion, claims that the use of medical marijuana has, quite literally, saved their lives,” he wrote. “I highlight plaintiffs’ experience to emphasize that this decision should not be understood as a factual finding that marijuana lacks any medical use in the United States, for the authority to make that determination is vested in the administrative process.” He added, “Even if marijuana has current medical uses, I cannot say that Congress acted irrationally in placing marijuana in Schedule I.”

Legal counsel for the plaintiffs have yet to publicly announce whether or not they intend to appeal Judge Hellerstein’s ruling.

A judge for the Federal District Court in Sacramento considered similar arguments in a 2014 legal challenge, also spearheaded by members of the NORML Legal Committee, but ultimately rejected them — ruling that plaintiffs failed to show that Congress acted irrationally when classifying cannabis as a schedule I controlled substance. “At some point in time, a court may decide this status to be unconstitutional,” the judge determined. “But this is not the court and not the time.”

A judge for the Federal District Court in Manhattan will hear arguments Wednesday in a lawsuit challenging the constitutionality of federal cannabis prohibition. Lawyers for the plaintiffs in the case include NORML Legal Committee member Joseph Bondy and Empire State NORML Director David Holland.

The 98-page complaint contends that the federal government “does not believe, and upon information and belief never has believed” that cannabis meets the requirements for a Schedule I designation under the Controlled Substances Act. It further argues that current administrative mechanisms in place to allow for the reconsideration of cannabis Schedule I classification are “illusory.”

A judge for the Federal District Court in Sacramento heard similar arguments in a 2014 legal challenge, also spearheaded by members of the NORML Legal Committee, but ultimately rejected them – opining: “At some point in time, a court may decide this status to be unconstitutional. But this is not the court and not the time.”

Plaintiffs in the current lawsuit include a former NFL football player, a disabled military veterans, two children with severe movement disorders, and the non-profit group, the Cannabis Cultural Association. Plaintiffs argue that federal prohibition violates their civil and constitutional liberties, including their right to freely travel within the United States. They also argue that the federal prohibition of cannabis is “grounded in discrimination and [is] applied in a discriminatory manner.”

Lawyers for the Justice Department are arguing for a dismissal of the suit, opining: “There is no fundamental right to use marijuana, for medical purposes or otherwise. Because such a right is not ‘implicit in the concept of ordered liberty’ or ‘deeply rooted in this Nation’s history,’ the Court should reject such a claim.”

Full text of the complaint, Washington et al. v. Sessions et al., is available online here.

The US Drug Enforcement Administration has publicly reiterated its position that cannabidiol, a non-psychotropic cannabinoid, is properly categorized under federal law as a schedule I controlled substance — meaning that, by definition, it possesses “a high potential for abuse,” “no currently accepted medical use in treatment in the United States,” and lacks “accepted safety … under medical supervision.”

The agency has long contended that CBD, along with all organic cannabinoids, is — by default — a schedule I controlled substance because it is a naturally occurring component of the cannabis plant. (This position is similarly held by both the NIDA and the FDA.) Nonetheless, a growing body of science undermines the notion that CBD meets any of the criteria necessary for such classification.

Specifically, clinical trial data finds that CBD is “safe,” “non-toxic,” and “well tolerated” in human volunteers. Even the director of the US National Institute on Drug Abuse acknowledges that CBD is “not mind-altering” and that it “appears to be a safe drug with no addictive effects.”

That is why in addition to the thirty states that presently recognize medical cannabis, an additional 16 states also explicitly recognize the use of CBD as a viable medical treatment.

Nonetheless, it remains unlikely that the DEA is going to amend its position any time soon. Further, police in recent months have begun initiating raids of CBD retailers, such as those reported here, here, and here. That is why it is critical that members of Congress move forward with legislation to remove the cannabis plant from the Controlled Substances Act.

Presently, several pieces of federal legislation are pending to amend the federal classification of CBD as a schedule I substance. These include:

HR 2020: Passage of this act would exclude CBD from the federal definition of ‘marihuana.’

S. 1374/HR 2920: Passage of these Acts would exempt from federal prosecution those who are engaged in state-sanctioned medical cannabis activities; it would also remove CBD from the federal definition of ‘marihuana.’

HR 2273/S. 1008: Passage of these Acts would exclude CBD and CBD-rich cannabis plants from the federal definition of ‘marihuana.’

You can contact your members of Congress in support of these bills and other pending legislation by visiting NORML’s Take Action Center here.

Justices for the Ninth Circuit Court of Appeals today ruled in favor of a 1968 federal law prohibiting the sale of firearms to any “unlawful user” of a federally controlled substance.

Justices determined that state-registered medical marijuana patients are forbidden from purchasing firearms because cannabis remains classified as a Schedule I substance under federal law. They further opined that the ban “furthers the Government’s interest in preventing gun violence” because marijuana users “are more likely to be involved in violent crimes.”

They concluded, “[The plaintiff in this case] does not have a constitutionally protected liberty interest in simultaneously holding a [medical cannabis] registry card and purchasing a firearm.”

In 2011, the Bureau of Alcohol, Tobacco and Firearms issued a memorandum to all gun dealers in the United States specifying, “Any person who uses … marijuana, regardless of whether his or her state has passed legislation authorizing marijuana for medicinal purposes, is an unlawful user of or addicted to a controlled substance, and is prohibited by federal law from possessing firearms or ammunition.”

In response to today’s court ruling, NORML Deputy Director Paul Armentano said: “There is no credible justification for a ‘marijuana exception’ to the US Constitution. Responsible adults who use cannabis in a manner that is compliant with the laws of their states ought to receive the same legal rights and protections as do other citizens. It is incumbent that members of Congress act swiftly to amend cannabis’ criminal status in a way that comports with both public and scientific opinion, as well as its rapidly changing legal status under state laws.”

The United States Drug Enforcement Administration has rejected a pair of administrative petitions that sought to initiate rulemaking proceedings to reschedule marijuana under federal law.

Although the DEA’s ruling continues to classify marijuana in the same category as heroin, the agency also announced in a separate decision that it is adopting policy changes designed to expand the production of research-grade cannabis for FDA-approved clinical studies.

For far too long, federal regulations have made clinical investigations involving cannabis needlessly onerous and have placed unnecessary and arbitrary restrictions on marijuana that do not exist for other controlled substances, including some other schedule I controlled substances.

While this announcement is a significant step toward better facilitating and expanding clinical investigations into cannabis’ therapeutic efficacy, ample scientific evidence already exists to remove cannabis from its schedule I classification and to acknowledge its relative safety compared to other scheduled substances, like opioids, and unscheduled substances, such as alcohol. Ultimately, the federal government ought to remove cannabis from the Controlled Substances Act altogether in a manner similar to alcohol and tobacco, thus providing states the power to establish their own marijuana regulatory policies free from federal intrusion.

Since the DEA has failed to take such action, then it is incumbent that members of Congress act swiftly to amend cannabis’ criminal status in a way that comports with both public and scientific opinion. Failure to do so continues the federal government’s ‘Flat Earth’ position; it willfully ignores the well-established therapeutic properties associated with the plant and it ignores the laws in 26 states recognizing marijuana’s therapeutic efficacy.

Under the U.S. Controlled Substances Act of 1970, the cannabis plant and its organic cannabinoids are classified as Schedule I prohibited substances — the most restrictive category available under the law. By definition, substances in this category must meet three specific inclusion criteria:

The substance must possess “a high potential for abuse”; it must have “no currently accepted medical use” in the United States; and, the substance must lack “accepted safety for use … under medical supervision.”

Substances that do not meet these criteria must, by law, be categorized in less restrictive federal schedules (Schedules II through V) and are legally regulated accordingly. Alcohol and tobacco, two substances widely acknowledged to possess far greater dangers to health than does cannabis, are not classified under the Controlled Substances Act.

A recent review of FDA-approved clinical studies evaluating the safety and efficacy of herbal cannabis concluded: “Based on evidence currently available the Schedule I classification is not tenable; it is not accurate that cannabis has no medical value, or that Information on safety is lacking.”

Added Armentano: “The DEA’s decision is strictly a political one. There is nothing scientific about willful ignorance.”

The DEA has previously rejected several other rescheduling petitions, including a 2002 petition filed by a coalition of marijuana law reform and health advocacy organizations, and a 1972 petition filed by NORML. The petitions that triggered this latest DEA action were filed in 2009 by a nurse practitioner and in 2011 by then-Govs. Christine Gregoire of Washington and Lincoln Chafee of Rhode Island.